Genuineness of Assent - Essay Example

Agreements or promises made must be consented to in order to bind all the parties to a contract. Essentially, the contracting process has to be genuine. If the genuineness of assent is questionable, the underlying contract(s) might fail to be legally binding. However, there are legal challenges involved relative to proving a lack of genuineness of assent in a contract context. The enforceability of a contract is subject to the genuineness of assent (Miller, 2012).

Contracts are effectively and efficiently performed where the genuineness of assent is not questionable. When genuineness of assent is characterized by doubt or lack of it altogether, legal provisions applicable to the contract context take their course. In this respect, the primary legal problems and challenges that surround genuineness of assent include mistake, misrepresentation, undue influence, or duress (Miller, 2012). The occurrence of these factors in a contract jeopardizes voluntary consent.

Mistakes in contracting can be made by one or more parties. In most cases, mistakes in contracting are either factual or value-based. On its part, misrepresentation encompasses fraudulent and non-fraudulent practices that could be perpetrated by one, more than once or all the contracting parties. Where a contracting party’s free will is overcome by the influence of another party resulting in contract consent that is not driven by free will, undue influence is realized (Miller, 2012). Moreover, an agreement or promise made under threats or force is not genuine; an aspect referred to as duress. All these issues constitute legal problems involved in contracting as far as genuineness of assent is concerned.

For a contractual offer to be null and void relative to the absence of genuineness, there are conditions that must be satisfied relative to mistake, misrepresentation, undue influence, or duress in contracting (Miller, 2012). Whether the mistake is unilateral or bilateral, the underlying condition is that the mistake has to be factual, not value-based regardless of whether the mistake was done by the promisor, promisee, or both. The condition that characterizes misrepresentation in contracting to entail evidencing material fact misrepresentation, intent to deceive,  and reliability of the innocent party on the misrepresentation (Miller, 2012).

Use of force and threats in contracting to constitute another avenue that affects the genuineness of assent. The exertion of undue influence must be proven based on the underlying contractual benefits, especially to the party subdued by the influence. On the other hand, the use of threats in contracting violates the genuineness of assent. In the context of threats, the contract is null and voidable if wrongful or illegal threats are employed.